Regina v Grant John COLB

[2006] NSWSC 811

CITATION:	Regina v Grant John COLB [2006] NSWSC 811 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	23 June 2006; 27 July 2006
JUDGMENT DATE :	11 August 2006
JUDGMENT OF:	Latham J at 1
DECISION:	Non-parole period of 14 years to date from 20 May 2005 expiring 19 May 2019. The balance is 4 years to date from 20 May 2019 expiring 19 May 2023.
CATCHWORDS:	Murder - sentence - plea of guilty - role of Post Traumatic Stress Disorder in commission of offence - past sexual assaults on offender.
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999
CASES CITED:	R v Way (2004) 60 NSWLR 168 ; [2004] NSWCCA 131 [85-86]
PARTIES:	Crown - Regina Offender - Grant John Colb
FILE NUMBER(S):	SC 2006/580
COUNSEL:	Crown - P Calvert Offender- A Haesler SC
SOLICITORS:	Crown - S Kavanagh Offender - SE O'Connor

IN THE SUPREME COURT
OF NEW SOUTH WALES
CRIMINAL DIVISION

LATHAM J

11 AUGUST 2006

2006/580 REGINA v GRANT COLB

SENTENCE

1 The prisoner, Grant John Colb, pleaded guilty on 5 May 2006 to the murder of David Richard McKeever on 12 May 2005. The offence carries a maximum penalty of life imprisonment.

2 The deceased, a 68 year old male, was found in his home in the afternoon of 13 May 2005 at South Durras (near Bateman’s Bay) with a number of stab wounds to the head, the most significant of which was a 20 mm wide stab wound to the left upper eyelid which penetrated about 115 mm into the head to the base of the skull and through to the brain. There were also stab wounds to the right eyebrow, right cheek and left side of the neck. The wounds to the left upper eyelid, right cheek and left side of the neck were inflicted with considerable force, causing fractures to the base of the skull, the cheekbone and penetration through to the airway. The deceased's nose had been broken and he had been struck about the body and forearms.

3 The prisoner and the deceased were well known to one another, albeit the precise nature of that relationship from the prisoner’s perspective is a matter of some complexity. The prisoner was in the company of the deceased from the late afternoon of 12 May 2005. The prisoner left the deceased's home in the deceased's vehicle later that evening, then abandoned it at Bomaderry railway station, where the prisoner boarded a train at 8:30pm. The prisoner’s fingerprint was found on the inside glass of the driver's door of that vehicle and the prisoner's DNA was found in the deceased's home on 19 May 2005.

4 A warrant obtained for the prisoner's arrest on that day was executed in the afternoon of 20 May 2005 at Kings Cross. Later that evening whilst in custody and in the course of two ERISP interviews on 23 May 2005 and 15 June 2005, the prisoner admitted killing the deceased. Various reasons were advanced by the prisoner for his assault upon the deceased, including that the deceased made unwelcome sexual overtures to him and that the prisoner believed at the time that there had been a sexual encounter between them when the prisoner was a child. The latter belief is now acknowledged by the prisoner to be false. Whatever the nature of the contact between the prisoner and the deceased in the late afternoon of 12 May, any reliance upon the partial defence of provocation has been abandoned by the prisoner’s plea. However, the objective evidence, the prisoner’s accounts of the offence, and more particularly his psychological state at the time, tend to suggest that this was a sudden, explosive act of violence, possibly triggered by something said or done by the deceased.

5 This rather superficial outline of the circumstances surrounding the offence belies a much more complicated history, both with respect to the prisoner’s family relationships and his association with the deceased. It is necessary to examine those histories in some detail in order to place the offence in a proper context and assess its objective gravity.

6 It should be stated at the outset that these remarks are not intended to blame or attribute responsibility to the deceased for the prisoner’s actions. The deceased’s homosexuality provided no excuse, justification or warrant for what was inflicted upon him. It is true that the deceased was known to the authorities at Goulburn gaol as a regular visitor of young adult male inmates and that he offered his home as temporary accommodation for such offenders while on bail or parole. It was in similar circumstances that the deceased came to know the prisoner and the prisoner’s brother. However, this is not a court of morals.

7 Unfortunately for the deceased, his pursuit of relationships with young adult male offenders exposed him to the risks inherent in the prison environment, including the risk of violence. As the following remarks attempt to make clear, the deceased was primarily a victim of the circumstances leading up to the prisoner’s arrival at the deceased’s home and the prisoner’s fragile psychiatric health at that time.

The History of the Relationship Between the Prisoner and the Deceased.

8 Between February and May 2000, the prisoner who was then 23 years of age was in custody at Junee following a breach of parole for illegal use of a motor vehicle and other driving offences. In about March 2000 the prisoner and the deceased began writing to each other. The earliest dated letter, namely 22 April 2000, in the bundle of correspondence that is Exhibit B in these proceedings, contains a number of terms of endearment used by the prisoner towards the deceased. The prisoner addresses the deceased as "dearest darling David" and "sweetness". The prisoner writes of a poem he is composing for the deceased and the prisoner's delight at receiving a surprise visit from the deceased and a card in the mail. These remarks coincide with the deceased's first recorded visit to the prisoner at Junee on 15 April 2000. The letter closes with a declaration of love and the words "always your teddy bear, Grant”.

9 The deceased continued to visit the prisoner on a weekly basis until the prisoner's release in May 2000. In late August 2000, the prisoner was returned to custody. In a further letter received by the deceased on 11 September 2000, the prisoner refers to further poems written for the deceased and to various gifts from the deceased to the prisoner, such as socks and a quantity of money. Two letters from the prisoner to the deceased in September and October 2000 contain terms of endearment and express the prisoner’s need for the deceased’s love and support. The October letter is signed by the prisoner "your partner".

10 The deceased visited the prisoner in custody on 4 November 2000, approximately 1 month before the prisoner's release. However in late January 2001 the prisoner was returned to custody in respect of a number of property offences. The deceased visited the prisoner on 26 May 2001. A series of letters written by the prisoner in July and August 2001 refer to the receipt of letters from the deceased, phone calls from the deceased and the deceased's relationship with the prisoner's brother, Lee. It appears from the terms of those letters that there has been a period of estrangement between the prisoner and the deceased.

11 The deceased again visits the prisoner on 11 August 2001 whilst the prisoner was serving a sentence for assault. The prisoner was released in late August 2001 but rearrested in early December 2001 for further property offences, for which the prisoner received fixed sentences of six months imprisonment. In a letter from the prisoner received by the deceased on 28 March 2002, the prisoner refers to the fact that he has a boyfriend and that he hopes to remain friends with the deceased. The prisoner also comments that he "wasn't happy when Jamie told [him] a couple of months ago that [the deceased] was seeing Lee again."

12 Following the prisoner's release from custody in June 2002, it appears that the prisoner went to Queensland. A number of summary convictions for drug-related matters were recorded against the prisoner in Queensland in June 2002. From 29 July 2002 until 13 April 2005 the prisoner was on remand in Queensland for robbery with violence and the infliction of grievous bodily harm. The deceased did not visit the prisoner throughout this period of time. In letters dated 15 August, 14 September, 4 and 18 November 2002 from the prisoner to the deceased, the prisoner refers to receiving letters from the deceased and to the continuing relationship between the deceased and the prisoner's brother Lee. The prisoner states "I can understand that you have no love for me and Lee has every right to get it all. … I promise I won't break up you and Lee." The prisoner continues to express his friendship towards the deceased.

13 In a letter received by the deceased on 9 December 2002, the prisoner refers to the receipt of a Christmas card and letter from the deceased. The prisoner also berates his brother for "ripping off" the deceased and apologises for his brother's actions. The prisoner signs the letter "Love you, Miss you, Love always, Grant".

14 The last piece of correspondence included in Exhibit B is a brief note dated 11 January 2004. The prisoner again refers to receiving a Christmas card from the deceased and signs the letter "lots of love -- friendship".

15 The history and content of the above correspondence suggests that the prisoner considered himself and the deceased to be in a sexual relationship, at least from March 2000 until mid-2001, albeit there is no direct evidence of any sexual activity between them. (The prisoner denied to police and continues to deny that he ever had a sexual relationship with the deceased.) From mid 2001, the prisoner appears to have accepted that the deceased's affections lay with the prisoner's brother, although the prisoner continued to expect and receive emotional and material support from the deceased. A prominent theme in the course of the correspondence is the prisoner's belief that the deceased is one of the few, if not the only, person who is willing to assist him.

The Events Leading up to the Offence.

16 The prisoner was released from custody in Queensland on 13 April 2005. He spent two nights with an acquaintance in Queensland before hitchhiking south. He spent three nights with another acquaintance in Surry Hills, arriving at his father's premises in Moruya on or about 27 April 2005. He stayed at those premises for four days, then went to his stepsister’s residence in Bega for the weekend before travelling to Albury to stay with another sister. At those premises the prisoner had a fight with his brother-in-law. The prisoner left Albury and travelled to Canberra for a few days, before returning to Bega on 12 May 2005.

17 At about 2 p.m. on 12 May 2005, the prisoner arrived at his father's house in Moruya. The prisoner's father was only prepared to accommodate the prisoner if certain conditions were met, including that the prisoner abstain from drug use and find employment. The prisoner stated he would not accept his father's terms and asked for four dollars so that he could travel to Bateman's Bay. The prisoner's father gave him four dollars on the condition the prisoner “forgot” his father’s phone number and address. The prisoner was taken to the main street of Moruya at approximately 2:30 p.m.

18 The prisoner arrived at Bateman's Bay Soldiers Club at about 3:30 p.m. looking for the deceased. The prisoner spoke to an employee of the club and told her that he was trying to get in touch with the deceased. The employee rang the deceased at home and told the deceased that the prisoner was at the club trying to contact him. The employee gave the deceased's phone number to the prisoner. It appears that the deceased travelled to Bateman's Bay to collect the prisoner, returning to his home shortly after 4:00 p.m. The deceased collected take-away food from a general store near to the deceased's home shortly after 5:00 p.m. The operators of that business were informed by the deceased that he had someone staying with him "just for the night, I hope" and noted that the deceased appeared agitated or unhappy.

19 The prisoner assaulted and killed the deceased sometime between the deceased arriving home after 5:00 p.m. and approximately 7:00 p.m. As noted above, the prisoner made his way from Bomaderry to Sydney by train. Shortly after 11:00 p.m., the prisoner telephoned his father and asked him whether his father meant everything he had earlier said about forgetting his phone number. The prisoner's father replied "yes" whereupon the prisoner said goodbye and hung up.

The Prisoner’s Accounts of the Offence

20 Following the prisoner's arrest, he was taken to Kings Cross police station and placed in the dock. The prisoner engaged in a conversation with Constable Jolly, the terms of which I have disregarded for the purposes of these proceedings on the basis that it contained an admission, which the Crown now concedes is unreliable within the scope of s 85 of the Evidence Act 1995.

21 At about 10:30 p.m., the prisoner told Constable Luke MacDonald "he deserved it, he was a paedophile. … I smashed his face, then I stabbed him in the eye and there." When asked why the prisoner had stabbed the deceased in the eye, the prisoner said "to take away his vision like all the young kids’ vision he has taken. I stabbed him in the throat so he wouldn't die choking in his blood. He died naturally." The prisoner declined to be interviewed at Kings Cross police station but consented to various forensic procedures, including a buccal swab and photographs of injuries to his hand. I note at this point that the prisoner accepted in his evidence in these proceedings that he had no knowledge of any paedophile activities on the part of the deceased. The deceased has never been convicted of any offence of that nature.

22 On 23 May 2005, the prisoner indicated that he wished to be interviewed. The recorded interview was conducted at Bateman's Bay police station. In that interview, the prisoner admitted stabbing the deceased with the intention to kill him. The prisoner said that he formed the intention to kill the deceased when he went to the kitchen to retrieve a knife. The prisoner stated that he was asleep on the lounge in the deceased's home and awoke to find the deceased fondling and sucking his genitals. He stated that he pushed the deceased away but that the deceased came back, so the prisoner hit him. The prisoner said that he then went to have a shower and on returning from the shower, he walked past the deceased, who tried to grab the prisoner's genitals. The prisoner then hit the deceased repeatedly. The prisoner said that he struck the deceased on the bridge of the nose with a port glass and stomped on the deceased's chest. At that point the deceased appeared to be unconscious. The prisoner then went to the kitchen, retrieved a knife, came back into the lounge room and stabbed the deceased through the eye. The deceased appeared to be breathing so the prisoner stabbed him through the throat. The prisoner then stole a number of items from the house and left the premises in the deceased's vehicle.

23 When asked why he had killed the deceased, the prisoner said that when he was about 16 years of age he and his brother were indecently assaulted by the deceased on the beach at Bateman's Bay. He repeated that he had stabbed the deceased through the eye "for the vision that he took away from me and my brother".

24 The prisoner contacted the police again in June 2005 and requested a further interview. On 15 June 2005 in the course of that interview, the prisoner said that when the deceased left to go and pick up the food, the prisoner put on a pornographic video and masturbated himself. He said that before he stabbed the deceased he accidentally stood on the deceased throat. He provided further details concerning the alleged sexual assault upon him by the deceased when he was a child, claiming that it occurred on one occasion in the water when the deceased had played with his genitals and placed his finger into the prisoner's rectum and kissed him. The prisoner claimed that as soon as he saw the deceased the first time when he came to visit the prisoner in jail, he had recognised the deceased as the person who had indecently assaulted him as a child. He said that he did not speak to the deceased about it because he was scared.

25 The prisoner’s brother, Lee Colb, denies being sexually assaulted by the deceased at any time. Lee Colb also denies any sexual relationship with the deceased, in spite of the fact that a quantity of correspondence between Lee Colb and the deceased, located amongst the deceased's belongings, suggest that there was some form of relationship between them. The objective evidence demonstrates that the deceased visited Lee Colb in prison on 18 November 2000, weekly from 9 December 2000 until 7 April 2001 and regularly between 24 November 2001 and 31 August 2001.

26 The evidence adduced from Dr Guiffrida and the prisoner's explanation for the offence to police suggest that the prisoner's belief as to the deceased's sexual assault upon him as a child was genuinely held. The prisoner now accepts that he is mistaken, a position which is not entirely surprising given the inconsistency between the prisoner's purported recognition of the deceased at their first meeting and his protestations of affection towards the deceased. However, the prisoner continues to assert that the deceased made uninvited sexual advances towards him. The Crown submits that given the variation between the accounts of the offence provided by the prisoner to the police and to this Court, taken together with the evidence of Dr Giuffrida (to which I shall shortly turn), the whole of the prisoner’s account of the circumstances leading up to the offence is so unreliable that no findings of fact ought be based upon it.

27 The submission advanced on behalf of the prisoner is that the prisoner responded and overreacted to an unwanted sexual assault by the deceased upon the prisoner whilst he was asleep. The resolution of this issue requires a consideration of the psychiatric evidence adduced on behalf of the prisoner.

The Prisoner’s Subjective Circumstances and the Evidence of Dr Giuffrida

28 The history provided by the prisoner to Dr Giuffrida is largely confirmed by Exhibit 2 in the proceedings. The prisoner's parents separated when he was two years of age. The prisoner first went to live with his father but was soon classified as an "uncontrollable child" because of his refusal to attend school and persistent lying and stealing. As a result of his behaviour, the prisoner was sent to live from time to time with his mother and paternal grandmother. He had also lived in various institutions including Careforce at St Mary's for three to six months (between the ages of 9 and 10) and then at Burnside Homes for about six months around the age of 12. At 13 years of age, on 7 June 1990, the prisoner was made a ward of the State with the consent of both his parents and placed in foster care in Victoria. This placement only lasted eight weeks due to the prisoner’s difficult behaviour.

29 The prisoner attended school to Year 7 in 1989, having suffered multiple learning and developmental problems since primary school. Since the age of 13 years, the prisoner had been living on the streets, in refuges and state ward homes, including a special school, Renwick, at Mittagong, a facility from which he repeatedly absconded. He was placed in various juvenile justice facilities during his childhood and adolescence, including Cerilli, Minali, Ormond and Renwick. He also spent time in Mount Penang Juvenile Justice facility in his later adolescence.

30 In January 1993, whilst the prisoner was hitchhiking near Surfers Paradise, Queensland, the prisoner was picked up and sexually assaulted by an older male, one Christopher Healey. The prisoner reported the matter to police and the offender was duly prosecuted. In late March 1993, the prisoner was a passenger in a stolen motor vehicle which was pursued by police, resulting in a serious motor vehicle accident. The driver of the vehicle, the prisoner’s friend, was killed and the prisoner received serious injuries requiring his hospitalisation for approx four weeks. At the age of 16 or 17, the prisoner supported himself by engaging in homosexual prostitution on the streets of Kings Cross. The prisoner's criminal record commences in December 1993 as a juvenile and continues uninterrupted to the present time. It consists mainly of property offences, drug offences, motor vehicle offences, assaults and escape lawful custody offences.

31 The prisoner reported a number of sexual assaults whilst in prison, the most serious of which occurred in 2003 in Queensland. The custodial records support the prisoner's account of being bashed unconscious and raped. This assault was followed by a series of self harm incidents, necessitating the prisoner being placed on suicide watch and the provision of two antipsychotic medications together with an antidepressant. The prisoner was examined by a psychiatrist on a number of occasions and a diagnosis of post-traumatic stress disorder, Cluster B personality traits with antisocial and borderline features and cocaine and poly substance abuse was made.

32 In the course of Dr Giuffrida’s report (Exhibit 1) the following appears: --

The two most significant sexual assaults, the one at the hands of Healey and the other whilst in the Queensland prison was certainly associated with feelings of intense fear, helplessness and horror. The sexual assaults were followed by recurrent and intrusive reliving of the assaults in vivid imagery and thought, in full consciousness, and associated with recurring for a time distressing dreams of incidents he thought somehow related to the sexual assault. After the assaults, particularly whilst in prison, he became intensely anxious and distressed and fearful of other inmates and there was some evidence of social avoidance and withdrawal. After each of the two serious sexual assaults, he suffered poor sleep, anxiety, depressive mood and probably difficulty in his concentration.

33 Under the heading “Diagnosis” Dr Giuffrida confirms that the prisoner has suffered from post-traumatic stress disorder, multiple learning disorders in childhood, possibly attention deficit hyperactivity disorder with extreme impulsivity, and particularly severe childhood conduct disorder which was associated with serious impairment in all areas of function including social, academic and occupational. From the age of 13, the prisoner developed an extreme form of Cluster B Personality Disorders, including many traits of an antisocial personality disorder. There were also very clear signs of a borderline personality disorder structure with a pervasive pattern of severe instability in interpersonal relationships and self image, with marked impulsivity in the full range of contexts. Doctor Giuffrida is of the view that there is a very serious identity disturbance with a marked instability of self image generally and of the prisoner’s gender identity and sexual preferences.

34 The report states “It seems very clear that the prisoner is intensely ambivalent in his sexual relationships as revealed by his willingness to prostitute himself to males and at the same time to be extremely traumatised by violent sexual assaults on him.” The prisoner's false but genuine belief that the deceased was the same man who had sexually assaulted him in childhood or adolescence suggested to Dr Giuffrida that the prisoner was also subject to Dissociative type symptoms. In terms of global assessment and functioning, the prisoner is grossly and seriously impaired.

35 In summary, Dr Giuffrida thought that the assault upon the deceased by the prisoner (as related to the police and confirmed to Dr Giuffrida) "unleashed a rage associated with his past sexual assaults, one occurring at a very young age which in effect remained suppressed until the moment that he was actually groped by the deceased."

36 Dr Giuffrida gave evidence in the course of the sentencing proceedings. Whilst rejecting the proposition that the prisoner was deliberately manipulating a diagnosis in his interviews with Dr Giuffrida, and confirming that the prisoner's accounts to police were generally consistent, Dr Giuffrida did express caution in relation to accepting everything that the prisoner had related. The reliability of particular statements made by the prisoner, including those made at Kings Cross police station shortly after his arrest, were considered suspect by Dr Giuffrida because of the prisoners personality disorder. Further, Dr Giuffrida spoke of the prisoner's eternal ambivalence towards homosexual relationships and that "any sort of homosexual advance on him might have been perceived as an assaulting one, even if not necessarily intended to be done in that way, given this man's personality structure and the fact that he did almost certainly suffer a post traumatic stress disorder in which he had relived experiences of the sexual assault." (T/S 23/6/06 p33)

37 I am satisfied on the basis of the evidence adduced in the proceedings on sentence that the prisoner did not engage in a consensual sexual relationship with the deceased at any time. Rather, the prisoner exploited the deceased's sexual interest in him in the hope and expectation that the deceased would continue to support him, as and when the prisoner needed that support. This behaviour was entirely consistent with the prisoner’s conflicted sexual identity and his experience as an adolescent living on the streets, who was required from time to time to trade sexual favours with older men in return for a means of support.

38 The prisoner's long history of alienation from and/or rejection by members of his family culminated in a repetition of that experience on the night of 12 May 2005. It is particularly significant in my view that the prisoner spent the better part of the time between his release from custody and his visit to the deceased, travelling from place to place in search of some material and emotional support. Immediately prior to visiting the deceased, the prisoner had experienced a seemingly final rejection by his natural father. He arrived at the deceased's premises an angry, traumatised and highly disturbed young man.

39 In all the circumstances, I would not be prepared to find that the deceased made unwelcome sexual advances towards the prisoner, particularly since the objective evidence suggests that the deceased was not expecting the prisoner and appeared to others to be unhappy about the prisoner's sudden appearance. However, I do not doubt that the deceased did or said something which was interpreted by the prisoner as a “betrayal”, according to the prisoner's account to Dr Giuffrida. It may be, as suggested by Dr Giuffrida, that the deceased's actions were interpreted by the prisoner as a sexual advance, and that that interpretation was an unremarkable outcome of the prisoner’s disturbed psychiatric state arising directly out of, amongst other things, past traumatic sexual assaults.

The Objective Gravity of The Offence

40 The assessment of the objective gravity of an offence ..

[takes] into account the actus reus, the consequences of the conduct, and those factors that might properly have been said to have impinged on the mens rea of the offender . Some of the relevant circumstances which can be said “objectively” to affect the “seriousness” of the offence will be personal to the offender at the time of the offence but become relevant because of their causal connection with its commission . This would extend to matters of motivation (for example duress, provocation, …), mental state (for example, intention is more serious than recklessness), and mental illness, or intellectual disability, where that is causally related to the commission of the offence, in so far as the offender's capacity to reason , or to appreciate fully the rightness or wrongness of a particular act, or to exercise appropriate powers of control has been affected.
R v Way (2004) 60 NSWLR 168 ; [2004] NSWCCA 131 [85-86]

41 Accordingly, the objective gravity of this offence stands to be assessed on the basis that the prisoner intended to kill the deceased, albeit it was an intention which was formed impulsively and immediately prior to the assault upon the deceased, and that he did so by the infliction of a number of serious wounds with a knife. The prisoner’s intention was not fleeting ; the prisoner went into the deceased’s kitchen to obtain the knife before returning to the lounge room where it appears that the deceased was sitting. This was a vicious assault by a physically fit young man upon an elderly male within the sanctity of the deceased's own home. The full horror of the deceased's experience was brought home to the deceased's elderly mother who discovered his body the next day. The prisoner's complete contempt for the deceased was reinforced by the theft of a number of items from the home including the deceased's car.

42 Absent the complex interrelationship between the prisoners ambivalent sexual identity, personality disorder, rejection by his family and his relationship with the deceased over a period of some years, I would agree with the Crown's submission that the offence occupies a position above the mid range of objective seriousness. However, the causal connection between these factors and the commission of the offence justify in my view an assessment of the objective seriousness below the mid range. Accordingly, the standard non-parole period applicable to the offence of murder pursuant to Part 4, Div 1A of the Crimes (Sentencing Procedure) Act 1999 does not apply.

Sentencing Considerations

43 A significant custodial penalty is nonetheless required and is accepted by the prisoner as inevitable. The prisoner’s prior extensive criminal history does not justify the extension of any leniency to him and the offence was committed whilst the prisoner was technically subject to conditional liberty, having received a sentence of five years imprisonment in Queensland on 13 April 2005, suspended for five years following the service of 989 days in custody, with time deemed as time served under the sentence.

44 The prisoner expressed his remorse during his evidence in these proceedings, independently of the contrition which I accept is inherent in his plea of guilty. The plea of guilty was entered as soon as the prisoner's legal representatives were informed of the unavailability of any relevant partial defence and the Crown has conceded that in these circumstances the prisoner is entitled to the full benefit of that plea.

45 It is relevant to have regard to a supplementary report from Dr Giuffrida which is part of Exhibit 1 dated 22 June 2006. Dr Giuffrida is of the opinion that the prisoner remains at high risk of continuing self harm in custody and that he will require management in the Special Programs Unit for mentally disordered persons at risk of self harm. For these reasons, the prisoner will require a high level of care, treatment, monitoring and supervision including medical and nursing care. He is at risk of succumbing to substance abuse in custody and should continue to remain under psychiatric treatment. The prisoner is currently receiving antidepressant and antipsychotic medication which appears to be of some benefit.

46 The prisoner is presently on “Protection, non Association”, defined as being housed in a cell or a group of cells for an inmate who cannot associate with any other inmate. He is locked down 23 hours per day. It is not anticipated that this will continue for an extended period. I do not propose to place any significant weight on this factor for the purposes of fixing a sentence which must in any event be proportionate to the objective gravity of the offence.

47 With respect to the risk of reoffending, Dr Giuffrida states that :-

[the prisoner] is 29 years old and he's reaching an age where one is likely to see some amelioration of the more disturbing behaviours observed in the borderline and antisocial personality disorder and one would expect by his mid-30s that one might expect a significant stabilisation of the mood component of his disorder and a gradual diminution of the symptoms of post traumatic stress disorder. The conditions are in their nature chronic and will only resolve with his being maintained in a stable, supportive and therapeutic environment with ongoing psychological, psychiatric and good nursing care. [The prisoner] has … been thoroughly institutionalised and shows many of the more grave stigmata of that condition and will of necessity need to be returned to the community on his release by way of a graded system of ongoing support and counselling, initially in a supportive and supervised form of accommodation in the community. The risk of ongoing harm to himself and of re-offence can be substantially reduced by crafting a program of return to the community that essentially involves a gradually decreasing level of supervision, restriction and increasing opportunity for participation in the community over an extensive period of time but at least two years.

48 The force of these remarks are illustrated by the consequences of the prisoner's release from gaol in Queensland approximately 1 month prior to the commission of the offence, without any supervision at all. The evident need for a staged release to the community and ongoing supervision was relied upon by Mr Haesler of Senior Counsel in order to justify a finding of special circumstances so as to alter the statutory ratio otherwise applying between the non parole period and the head sentence. Despite these submissions, the NPP I am about to impose is the least necessary for the purposes of general and specific deterrence, retribution and punishment and I regard a period of 4 years as sufficient for the purposes outlined by Dr Giuffrida.

49 Grant John Colb, you are convicted of the offence of murder. I sentence you to a NPP of 14 years, to date from 20 May 2005, expiring 19 May 2019. The balance of the term is 4 years to date from 20 May 2019, expiring 19 May 2023. You are eligible for release at the expiration of the NPP.

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15/08/2006	-	typographical error in coversheet - Paragraph(s) Coversheet
16/08/2006	-	Should have read "assault upon the deceased by the prisoner" - Paragraph(s) 15